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DRAFT Regular City Council Meeting Monday, October 21, 2013 Page 10 was exceeding the ability to provide enforcement at this point, and created more questions than answers. Councilmember McGehee stated that she would prefer erring on the side of public health and safety; and opined that the City Council should rely on staff's research rather than allowing something to go forward and creating difficulties in enforce- ment. McGehee moved, Etten seconded, enactment of Ordinance No. 1455 (Attachment A) entitled, "An Ordinance Amending Title 3, Section 306.01; Relating to Tobac- co Products" as presented by staff; revising the definition of tobacco products to include ALL e-cigarettes and similar devices. City Attorney Gaughan stated that he was not making any value judgments or an endorsement for or against this ordinance amendment, but thought it important that the City Council kept in mind that authority for any municipal regulations of any cigarettes came under State law, with cities allowed to impose regulations to combat the danger of second-hand smoke, even though that was an outdated term of phrase given new technologies. Mr. Gaughan stated that the concern he couldn't get past was that, in the absence of clear research and study regarding what is in that vapor, could the City say dangers of second-hand smoke were be- ing emitted; an answer he could not provide at this time. If the City Council con- sidered regulating something that they had no actual basis for doing, indicating that the vapors were dangerous, Mr. Gaughan questioned on what the City Coun- cil was basing their enforcement; and without that basis, could be found arbitrary and capricious by a court of law. Councilmember McGehee opined that since there was little to distinguish how to evaluate the substance contained in vapors, whether nicotine or not, and no cur- rent regulation of the product generated in that vapor due to so little regulation at this time, she found it to clearly be an imminent health risk. Councilmember McGehee opined that the City would therefore be remiss in not taking preventa- tive action until they were provided firm, conclusive proof that there was no dan- ger. Councilmember Laliberte stated that she found the opposite to be true, question- ing why the City would take action before that data was available; and since the State and FDA were currently working on it, she opined that it was premature for the City to act on this ordinance when enforcement would be difficult. With her obvious concern being sales to minors, with that provision apparently being ad- dressed by individual establishment owners, Councilmember Laliberte opined that if someone wanted to smoke something, they had the freedom to do so. Councilmember Willmus opined that the City Attorney had done a good job rep- resenting the City in his opinion with this matter; opining that the City currently